DISSENTING OPINION OF MR L. LOUCAIDES

       JOINED BY MM. S. TRECHSEL, H.G. SCHERMERS, C.L. ROZAKIS,

                J.-C.GEUS, J. MUCHA AND E. KONSTANTINOV

      I am unable to agree with the view of the majority in this case

that the interference in the private life of the applicants was

justified.  I base my opinion on the following reasons.

      The activities for which the applicants were convicted of the

offences of assault and wounding were carried out in private between

consenting adults.

      The majority found that the conviction of the applicants was not

disproportionate and falls within the margin of appreciation to be

accorded to the Government as regards the imposition of measures to

protect its citizens from physical injury and that consequently the

interference with the applicants' right to respect for their private

life may be considered as "necessary in a democratic society" for the

aim of protecting health.

      However, in the present case the domestic courts do not refer to

any permanent or serious harm or injury being caused in the course of

the applicants' activities.  Nor was it established that a real risk

of such harm or injury existed in the circumstances of this case.  The

risk of activities getting out of hand could be met effectively by the

existing provisions of the criminal law because in such a situation

either there will be no consent or serious harm will be caused.  While

mention has been made of AIDS and the risk of infection from

bloodletting activities in both domestic and Commission proceedings

this risk has not been substantiated.  At any rate the risk of

infection with the AIDS virus arises in lawful adult heterosexual and

homosexual acts and cannot by itself be used as a ground for

prohibiting private sexual activities.

      I attach particular importance to the fact that in the legal

system of the respondent State activities which cause injury or are

inherently dangerous to health are generally considered lawful by the

mere fact that they are consented to.  A typical example is the case

of boxing which may cause more severe physical injury  than the

activities of the Applicants and where violence is glorified with the

result that it may incite others to engage in it.

      On 15 October 1995 two professional boxers died as a result of

a boxing match.  It has not been shown that the sado-masochistic acts

of the applicants risk to have comparable consequences.

      For the margin of appreciation of the State to be acceptable

justification it must not be arbitrary or lead to inconsistencies.  It

appears that the treatment of activities which may cause physical

injury by the legal system of the respondent State is not consistent.

Apart from the example of boxing one may refer also to cosmetic surgery

and tattooing where consent is sufficient to preclude offences being

brought.

      The Government have also relied on the protection of morals as

justifying prohibition of the sado-masochistic behaviour under

consideration.  It is important to note in this respect that the

English criminal law does not punish sado-masochistic acts as such and

that the activities of the applicants in this case were merely covered

by the offences of assault and wounding.  This is indicative of the

fact that the punishment of the activities in question was not

associated with moral considerations.  Such activities were treated as

impermissible or unacceptable basically because of their violent

character.  I believe that when the protection of morals is invoked in

order to justify an interference with private life in the form of

criminal sanctions the relevant moral considerations must have been the

raison d'être of such sanctions and not an ex post facto justification.

The offences of assault and wounding are intended to protect physical

integrity and not morals.

      As the Court has stated it is not enough for the acts to shock,

disturb or offend.  There must be some additional element which

necessitates state interference.  This element has not been established

in this case.

      As regards the risk to the young and vulnerable it should be

noted that the offences with which the applicants were charged did not

involve minors.  Furthermore criminal offences already exist under

United Kingdom law for the protection of minors.  It cannot be assumed

and certainly it has not been established that the applicants form of

sexual activities poses in its nature any greater risk of involvement

of the young and vulnerable than any other form of homosexual or

heterosexual relations.

      If we accept that the interference in question is legitimate we

inevitably open the way to Governments to intrude into persons'

bedrooms to investigate allegations, for example, that spouses engage

in sado-masochistic activities.  Strong good reasons are necessary for

such a course which in my opinion are lacking.

      In light of the above I find that the Government have not put

forward any convincing justification for the prohibition under the

criminal law of the applicants' consensual private behaviour which

resulted in minor forms of bodily harm.  I am therefore of the opinion

that the conviction of the applicants for assault and wounding cannot

be considered as "necessary in a democratic society" for the aims of

protecting health or morals.